When has an employer done enough to avoid liability for disability discrimination? Though hard and fast rules are rare in employment discrimination cases, particularly those involving disabilities, the Tenth Circuit Court of Appeals recently held that employers are almost never required to provide more than 6 months leave to an employee with a disability.

The quality versus cost argument is nothing new especially when it comes to insurance. Consumers who pay less tend to get less, whether in the form of coverages, limits or financial security. And, when people choose cost over quality, it usually means they are uninformed about what they really need.

In Hwang v. Kansas State University, an assistant professor working under a one year employment contract was diagnosed with cancer. KSU gave Ms. Hwang a six-month paid leave of absence so she could get treatment. On the advice of her doctor, Ms. Hwang requested additional time off. According to Ms. Hwang, KSU refused her request and effectively terminated her employment.

Ms. Hwang filed a lawsuit under the Rehabilitation Act of 1973, which prohibits employment discrimination against individuals with disabilities working in the federal sector. The Rehabilitation Act and the Americans with Disabilities Act generally provide the same protections for individuals with disabilities and impose the same obligations on their employers. Since both laws are intended to be interpreted and applied consistently, cases involving one law are generally applicable in cases involving the other.

Despite being a qualified teacher with a disability, Ms. Hwang was unable to work at any point or in any manner for a period of more than six months. As a result, the court concluded that Ms. Hwang wasn’t able to perform the essential functions of her job even with a reasonable accommodation.

“It perhaps goes without saying that an employee who isn't capable of working for so long isn't an employee capable of performing a job's essential functions — and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.”

So, what separates an absence that enables an employee to continue performing the essential functions of a job from one that does not? According to the court, the answer usually depends on factors like the duties essential to the job in question, the nature and length of the leave sought, and the impact on fellow employees.

Nevertheless, despite the need to evaluate the specific facts and circumstances in each case, the court noted that, “it's difficult to conceive how an employee's absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

Though sympathetic, the court stated that Ms. Hwang is experiencing a problem that other forms of social security need to address. “The [law] seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

Despite its relatively strong position, it is important to note that the court didn’t hold that more than six months’ sick leave is never required. Instead, t he court held that it is almost never required. This means that employers must still proceed cautiously when dealing with accommodation requests and consider all the facts and circumstances before making a decision.

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